In re J.P.

[Cite as In re J.P., 

.]




                           IN THE COURT OF APPEALS
                       FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




 IN RE: J.P.                               :     APPEAL NOS. C-220647
                                                             C-220648
                                           :     TRIAL NOS. 21-1175X
                                                             21-1195X
                                           :


                                           :       O P I N I O N.


Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: December 29, 2023


Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Appellee State of Ohio,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Appellant J.P.
                  OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Presiding Judge.

       {¶1}   Appellant J.P. was adjudicated a delinquent child for acts that, if

committed by an adult, would constitute felonious assault and felony murder. J.P. was

involved in a fight with N.G., which ended when J.P. stabbed N.G. in the neck with a

knife. N.G. died shortly thereafter from her injury. At trial, J.P. sought to justify her

actions as self-defense. For the following reasons, we affirm the judgments of the

juvenile court.

                       I. Procedural and Factual History

       {¶2}   Prior to the events of April 2021, J.P. and N.G., both 13-year-old girls,

had been close friends. Sometime before the end of the school day on April 19, 2021,

N.G. confided in J.P. that she had contracted a sexually transmitted disease (“STD”).

While on the Metro bus home from school on April 19, it became apparent that N.G.’s

secret had gotten out when other students bullied N.G. about having an STD. N.G.

assumed that J.P. had shared her secret.

       {¶3}   Later that afternoon, N.G., accompanied by her 15-year-old brother,

M.G., and her female cousins, 13-year-old C.W. and 18-year-old A.G., went to J.P.’s

house. While J.P. cowered behind her mother at the door, N.G. and her companions

insisted that J.P. come out to fight to answer for her leaking N.G.’s secret. N.G. and

her companions threatened to beat up J.P. However, J.P.’s mother refused to let the

group fight with J.P. Although J.P.’s mother seemed amenable to letting J.P. fight one-

on-one with N.G., that option was not acceptable to N.G. and her companions.

Eventually, the group left, threatening to return with N.G.’s mother.

       {¶4}   Later that night, at around 9:00 p.m., J.P. asked her mother if she could

walk her cousin, S., out to the curb. J.P.’s mother agreed.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}    Around the same time, N.G., M.G., C.W., and A.G. drove past J.P. They

testified that they were headed to a restaurant. When the group saw J.P. outside of her

house, A.G. stopped the car. N.G. and C.W. immediately got out of the car. N.G.

approached J.P. In C.W.’s account, M.G. and A.G. were delayed getting out of the car

by 15 to 20 seconds. Both M.G. and C.W. testified that J.P. was accompanied by three

or four other, unidentified people.

       {¶6}    According to C.W., J.P. asked the group, “Let me call my mom.”

According to J.P.’s mother, J.P. called her and told her, “Momma, they got me. They

jumped me. Get here.” J.P. then tossed her phone aside and approached N.G.

       {¶7}    N.G. squared up to J.P., ready to engage in a fistfight. J.P. pulled out a

knife as she approached N.G. According to M.G., N.G. put her hand up and tried to

take the knife from J.P. Then J.P. slashed at N.G., stabbing her once in the neck.

       {¶8}    N.G.’s companions loaded N.G. back in the car and drove her home.

From there, N.G. was taken to the hospital by ambulance, but the lifesaving efforts

were unsuccessful. N.G. succumbed to her wound. Later that night, J.P.’s mother took

J.P. to surrender at the police station.

       {¶9}    The state filed complaints alleging that J.P. was a delinquent child for

conduct that, if committed by an adult, would constitute purposeful murder under

R.C. 2903.02(A), felonious assault under R.C. 2903.11, and felony murder under R.C.

2903.02(B).

       {¶10} The state obtained serious youthful offender (“SYO”) indictments on all

charges, but the juvenile court dismissed the SYO indictments because the state failed

to follow the proper statutory procedure. This court affirmed the juvenile court’s

decision in In re J.P., 

, 

 (1st Dist.).




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11} The state filed a motion to prevent defense expert witness Dr. Jean

Deters from testifying at trial. The court granted the motion in part and ordered that

Dr. Deters “may not testify as to the fact issues in the case, i.e. self defense and

culpability.”

       {¶12} The case was tried in September 2022. The juvenile court found J.P. not

guilty of purposeful murder, but adjudicated her delinquent on the felonious-assault

and felony-murder counts.

       {¶13} The court placed J.P. on probation and suspended commitment to DYS

until her 21st birthday. The court ordered that J.P. complete rehabilitative

programming at a locked facility through her probation.

       {¶14} This appeal timely followed.

                                    II. Analysis

       {¶15} J.P. raises three assignments of error. First, J.P. argues that her

adjudication was against the manifest weight of the evidence. Second, J.P. argues that

the trial court abused its discretion in refusing to admit the expert report and

testimony of psychologist Dr. Jean Deters. Finally, J.P. argues that the trial court

abused its discretion by admitting improper character evidence in the form of a video

of a previous fight and by permitting the state to refresh a witness’s recollection

through improper means.

                            First Assignment of Error

       {¶16} In reviewing a claim of self-defense, the appellate court applies a

sufficiency-of-the-evidence standard to whether the defense has met its burden of

production and a manifest-weight-of-the-evidence standard to whether the state has

met its burden of persuasion. State v. Messenger, 

,




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                   OHIO FIRST DISTRICT COURT OF APPEALS

, 

, ¶ 26.

       {¶17} In reviewing whether a conviction runs counter to the manifest weight

of the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 

, 

 (1997). We will review “the entire record, weigh the evidence and

all reasonable inferences, consider the credibility of the witnesses and determine

whether, in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.” State v. Bailey, 1st Dist. Hamilton No. C-140129,

, quoting 

, quoting State v. Martin, 

, 

 (1st Dist.1983). However, we will reverse the trial

court’s decision to convict and grant a new trial only in “the exceptional case in which

the evidence weighs heavily against the conviction.” 

, quoting

.

       {¶18} “The elements of self-defense in the use of deadly force are: (1) the

defendant was not at fault in creating the situation giving rise to the affray; (2) the

defendant had a bona fide belief that she was in imminent danger of death or great

bodily harm and that her only means of escape from such a danger was in the use of

such force, and (3) the defendant did not violate any duty to retreat or avoid the

danger.” State v. Smith, 1st Dist. Hamilton No. C-190507, 

,

citing State v. Barnes, 

, 

 (2002). Each element is

required, and the absence of any element is fatal to the defense. State v. Terry, 1st

Dist. Hamilton No. C-220379, 

. Under most circumstances, R.C.

2901.09(B) removes the duty to retreat, State v. Mitchell, 1st Dist. Hamilton No.

C-220471, 

, ¶ 17, and the juvenile court found that J.P. had no duty




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                   OHIO FIRST DISTRICT COURT OF APPEALS



to retreat.

       {¶19} The juvenile court found that J.P. was at fault for creating the situation

that gave rise to the affray by leaving home, armed with a knife. The court stated in its

findings of fact that:

               The State argues that J.P. created the situation and thus is not

       protected by a self-defense claim because she started the interaction

       earlier in the day by sharing N.G.’s secret. Without sharing the secret,

       they argue, N.G. would not have wanted to fight J.P. at all.

               The evidence shows both N.G. and J.P. were equally responsible

       for creating the interaction leading to N.G.’s death. First, regardless of

       what happened on the Metro, violence and threats of violence were not

       excused as a reaction. The state argues that there was a fight on the bus

       and N.G. was scared, however State’s Exhibit 11 does not show a fight or

       even an excitable argument.

               The parties gloss over the fact that N.G. and J.P. were going to

       physically fight to settle the alleged wrongdoing, which is unacceptable

       conflict resolution for thirteen year old girls, though the Court would

       prefer to hear Assault cases and not Murder. Though the initial verbal

       argument may have started because of a leaked secret, when N.G. and

       her cousins went to J.P.’s home, they escalated emotions and created a

       heightened sense of confrontation and danger. J.P. argues that she

       carried the knife with her because she had heard what N.G.’s group had

       said earlier in the day, and she was afraid they would follow through on

       their threats. If that is true, leaving her home outside, after dark,




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       without an adult created a dangerous situation. J.P. points the Court to

       the video of the confrontation outside of her home after school that day,

       noting that J.P. hid behind her Mother because she was scared. That

       video was daytime, with lots of other people around in the

       neighborhood. It is clear that J.P. either did not believe the group’s

       statements or she wanted to fight N.G. that night. She left her home, in

       the dark, and took a knife with her, as if she was preparing for the fight

       ahead. Knowingly entering a dangerous situation, made more volatile

       by the events of the day, leaves J.P. without the ability to claim she acted

       in self-defense.

       {¶20} We hold that the juvenile court erred in concluding that J.P. caused the

affray by leaving her home armed with a knife, as if she were preparing for a fight. The

evidence was undisputed that J.P. left her home to walk her cousin to the curb. N.G.

and her friends drove past J.P. on their way to a restaurant and decided to stop the car

and confront J.P. There was no evidence that there was a planned fight at this time.

Furthermore, this court has previously held that a defendant’s mere possession of a

weapon does not create the situation that gives rise to the affray where the possession

does not influence the victim’s use of force against the defendant. See In re B.M., 1st

Dist. Hamilton No. C-170103, 

 (“The presence of the knife had no

influence on [the victim]’s decision to place his arms around [the defendant] and did

not create the situation that gave rise to the assault.”). There is no evidence in the

record that J.P.’s possession of the knife influenced N.G.’s decision to approach J.P.

and square off for a fight.

       {¶21} Under the circumstances, the juvenile court’s conclusion that J.P. was



                                            7
                    OHIO FIRST DISTRICT COURT OF APPEALS



at fault in causing the affray is not supported by the evidence. However, this does not

end our analysis.

       {¶22} The next element requires that J.P. “had a bona fide belief that she was

in imminent danger of great bodily harm or death and her only means of escape from

such danger was stabbing” N.G. In re B.M. at ¶ 12. This requires the trier of fact to

“consider the entire situation and determine whether the person’s actions were

reasonable under the circumstances.” 

 quoting In re Bumpus, 1st Dist. Hamilton

No. C-020776, 

, ¶ 11.

       {¶23} In analyzing this element, the juvenile court found:

                The second factor of the self-defense claim, that there were

       reasonable grounds to believe that she was [in] imminent danger of

       death or great bodily harm, fails for the same analysis outlined above.

       Looking at the day as a whole, which is what both parties urged the

       Court to do, leaves the Court with the view that N.G. and J.P. were

       determined to fight each other on April 19, 2021, and that any fear of

       harm J.P. had was that harm caused by a fistfight. Even if the Court

       found merit in the argument that J.P. was fearful of great bodily harm

       or death because the group was going to “jump” her rather than “fight”

       her, the law only provides a self-defense claim for great bodily harm or

       death.

                                       *    *   *

                Notably, though, is the reasonable use of force requirement as an

       ancillary factor to the self-defense analysis. Self-defense is only

       available if the person used force reasonably necessary under the




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       circumstances to protect themselves from an apparent danger. If the

       force used is greatly disproportionate to the apparent danger, then self-

       defense is unavailable.

              Both J.P. and N.G. were thirteen years old on April 19, 2021. The

       theme from both sides of the case was that this was supposed to be a

       fight between J.P. and N.G., but the other side took it too far. For the

       Defense, they argue that N.G. escalated the one-on-one fight by bringing

       others with her. The State argues that J.P. unnecessarily brought a knife

       to a fistfight. As mentioned earlier, a set up fight as a method of conflict

       resolution is not acceptable. However, the fight was understood to be a

       fistfight. J.P.’s claim that she had the knife for protection circles back to

       the first factor analysis of entering a volatile situation with an

       assumption that something would happen. The Court declines to find

       that children are permitted to arm themselves for preventative self-

       defense where they anticipate needing to settle a beef.

       {¶24} As stated above, the uncontroverted testimony that N.G. and her

companions were driving to a restaurant when they saw J.P. and stopped the car when

they saw her standing at the curb contradicts the trial court’s finding that there was

“supposed to be a fight between J.P. and N.G.” J.P. was near her home when N.G.

confronted her, and there is no evidence to imply that J.P. was out looking for N.G.

when the confrontation occurred.

       {¶25} However, within the second element of self-defense is a requirement

that the defendant use no more force than is reasonably necessary to repel the attack.

State v. Rhymer, 1st Dist. Hamilton No. C-200164, 

.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



Whether the force used was excessive is a question for the factfinder. State v.

Kendricks, 10th Dist. Franklin Nos. 10AP-114 and 10AP-115, 

, ¶ 39.

We have previously rejected a manifest-weight challenge where the defendant stabbed

an unarmed assailant who was strangling the defendant. State v. Jordan, 1st Dist.

Hamilton No. C-210603, 

 (“While Jordan may have shown that

Cutts started the fight and that he reasonably believed he had to use force to protect

himself, the amount of force that he used was not reasonably necessary.”).

       {¶26} Furthermore, testimony at trial revealed that J.P. was not alone. C.W.

testified that there were three or four other people, possibly including J.P.’s brother,

with J.P. at the time of the final altercation between J.P. and N.G. M.G. testified that

there were “like four of them” when he saw J.P. in the time leading up to the

altercation. The Tenth District has upheld a conviction where the defendant shot at an

attacking group of ten men surrounding him on the basis that the presence of the

defendant’s friends nearby “plausibly eliminat[ed] the need to use deadly force.”

Kendricks at ¶ 41. Likewise, it would not be unreasonable for a factfinder to believe

that the fact that J.P. was not alone and had friends nearby “plausibly eliminated” her

need to use deadly force to repel the unarmed attack by N.G. and her friends.

       {¶27} After reviewing the entire record, weighing the evidence and all

reasonable inferences, and considering the credibility of the witnesses, we cannot hold

that the trial court clearly lost its way and created such a manifest miscarriage of

justice that the adjudication must be reversed.

       {¶28} J.P.’s first assignment of error is overruled.

                           Second Assignment of Error

       {¶29} At trial, J.P. attempted to present a report and testimony from Dr. Jean



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                  OHIO FIRST DISTRICT COURT OF APPEALS



Deters, a psychologist, addressing the effect of adolescent brain development on

decision-making, as it pertains to J.P.’s actions. The court ruled that the report and

testimony would not be admitted at trial to show culpability or whether or not J.P.

acted in self-defense.

       {¶30} “The admission of evidence is within the sound discretion of the trial

court.” State v. Buck, 

, 

 (1st Dist.), citing State

v. Obermiller, 

, 

, 

, ¶ 61. Accordingly,

we review such a decision for “an abuse of discretion and proof of material prejudice.”

 citing State v. McKelton, 

, 

, 

. An abuse of discretion occurs when the juvenile court’s decision is

“unreasonable, arbitrary or unconscionable.” 

 quoting Blakemore v. Blakemore, 

, 

 (1983).

       {¶31} J.P. argues that Deters’s expert testimony was necessary to understand

J.P.’s actions in the context of a juvenile from an at-risk community. J.P. analogizes

the testimony Deters would have presented to evidence regarding battered child

syndrome, which is “admissible in Ohio courts when it is relevant and meets the

requirements of Evid.R. 702.” State v. Nemeth, 

, 

 (1998). Nemeth also tells us, “Courts should favor the admissibility of expert

testimony whenever it is relevant and the criteria of Evid.R. 702 are met.” 

.

       {¶32} The state argues that the brain-science evidence that J.P. wanted to

include is tantamount to arguing that a juvenile’s ongoing brain development prevents

a finding of culpability, which is analogous to arguing that the defendant is not guilty

by reason of insanity, a defense that is not available in juvenile court. The state argues

that the evidence was relevant only for mitigation, but it was not relevant for




                                           11
                   OHIO FIRST DISTRICT COURT OF APPEALS



adjudication.

       {¶33} The court refused to admit Dr. Deters’s testimony or report. In ruling

from the bench, the court stated:

                Okay. So, I’m going to grant the State’s motion to preclude or

       keep out Dr. Deters’ testimony and report in the adjudicatory phase of

       the trial. However, I am going to allow the Defense to argue, if they

       would like to, about when they are arguing self-defense which, has been

       stated that that’s what’s going to happen, if they would like to, about

       how that applies to their client as a child, to a reasonable child, they can

       argue about that.

                But as far as what Dr. Deters has to offer, I understand – and I

       understand its importance, but I do think that it is a mitigation issue. It

       is a why and not an if. And so, that’s – if we have an adjudication if you

       would like to bring her in, we will do that then. Okay.

       {¶34} Under Evid.R. 401, evidence is relevant if it has “any tendency to make

the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Nemeth, 

, 

, quoting Evid.R. 401. Under Evid.R. 702, expert

testimony is admissible if all of the following conditions are met:

       (A) The witness’ testimony either relates to matters beyond the

       knowledge or experience possessed by lay persons or dispels a

       misconception common among lay persons;

       (B) The witness is qualified as an expert by specialized knowledge, skill,

       experience, training, or education regarding the subject matter of the




                                           12
                  OHIO FIRST DISTRICT COURT OF APPEALS



       testimony;

       (C) The witness’ testimony is based on reliable scientific, technical, or

       other specialized information.

, quoting Evid.R. 702.

       {¶35} In Nemeth, the court held that evidence was “clearly relevant” where it

“would support a defendant’s explanation of the events at issue and would provide

evidence as to his possible state of mind at the time of the incident * * *.” 

. In

Nemeth, the court endorsed the use of expert testimony to show whether the

defendant: “(1) had acted with prior calculation and design as charged in the

indictment, (2) had acted with purpose as required for the lesser included offense of

murder, (3) had created the confrontation or initiated the aggression, and (4) had an

honest belief that he was in imminent danger, a necessary element in the affirmative

defense of self-defense.” 

       {¶36} In the case at bar, Deters’s report covers many topic areas around J.P.’s

actions on April 19. In some portions, the report covers material that is not relevant

and therefore inadmissible, such as Deters’s conclusions based on her own

interpretation of events. However, there are other portions that contain relevant,

scientific insights that help explain J.P.’s actions and mental processes, including

those that influence at least her subjective belief in the need to use force in self-

defense.

       {¶37} Relevant portions of Deters’s report include her psychiatric findings:

“By the definitions supplied by medical and psychiatric guidelines (ICD-11, DSM-5),

[J.P.] met the criteria for what is terrorizing enough to cause a traumatic reaction.”

Additionally, Deters presents relevant insights based on research into adolescent




                                            13
                   OHIO FIRST DISTRICT COURT OF APPEALS



psychology:

       Because the brain develops slowly, so does learning to have a long-term

       perspective. Adolescents often do not plan or do not follow their plans

       well. They are easily distracted by unanticipated events. Having not

       thought things out ahead of time, they usually view as ‘accidental’ the

       unintended consequences of actions that adults would reasonably

       predict could have a bad outcome. In [J.P.]’s situation, carrying and

       even using a weapon did not mean she intended harm. Her plan was

       simple, to magically protect herself and be back on the school bus the

       next day.

       {¶38} Deters’s report meets the criteria of Evid.R. 702. The report is helpful to

“dispel[] a misconception common among lay persons,” namely that children,

particularly teenagers, are merely small adults. There is no dispute that Deters has the

“specialized knowledge, skill, experience, training, or education” to qualify as an

expert, nor that her report is “based on reliable scientific, technical, or other

specialized information.”

       {¶39} Rather than evaluate the redacted version of the report that omitted

Deters’s factual conclusions, the court decided to exclude the report entirely during

adjudication. The court refused to hear any evidence regarding child psychology or

other brain science that would relate to the difference between juvenile and adult

decision-making, particularly noting the circumstances of J.P.’s community,

upbringing, and traumatic experiences.

       {¶40} The juvenile court emphasized that it is already familiar with the sort of

material in Deters’s report:




                                          14
                  OHIO FIRST DISTRICT COURT OF APPEALS



       And is that knowledge – because I hear what you’re saying and I – the

       literature and those sorts of things are available to the Court and to the

       public and not necessarily because of her expertise. And so, I’m

       wondering is – let me think of the best eloquent way to say this. What

       can she – I don’t see anything that [Dr. Deters] can offer to the Court

       that the Court has not had an opportunity to avail itself to, given the

       Court’s responsibility in this position.

       {¶41} However, the standard for admissibility under Evid.R. 702 does not

depend on the knowledge and information that the trier of fact has “had an

opportunity to avail itself to.” Rather, the standard is whether it “relates to matters

beyond the knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons.” (Emphasis added.) Evid.R. 702.

       {¶42} Under the circumstances, we hold that the juvenile court abused its

discretion by refusing to admit Deters’s report insofar as the report contains relevant

information useful to understanding such factors as whether J.P. acted with purpose

as required for the charged offense of murder, created the confrontation or initiated

the aggression, and had an honest belief that she was in imminent danger.

       {¶43} However, we also hold that the error is harmless. “The existence of error

does not require a disturbance of the judgment unless the error is materially

prejudicial to the complaining party.” Brown v. Burnett, 

, 

, ¶ 57 (2d Dist.), quoting McQueen v. Goldey, 

, 

 (12th Dist.1984). The juvenile court adjudicated J.P. not guilty of the purposeful-

murder charge, which is the charge that is most relevant to the excluded material. And

as a juvenile court, the court is already familiar with much of the science around the




                                           15
                  OHIO FIRST DISTRICT COURT OF APPEALS



difference between juvenile and adult decision-making, which reduces the impact of

any preconceptions that would be held by lay persons. Consequently, we hold that J.P.

did not suffer material prejudice by the exclusion of Deters’s report and testimony.

       {¶44} J.P.’s second assignment of error is overruled.

                             Third Assignment of Error

       {¶45} In her third assignment of error, J.P. argues that the juvenile court erred

in permitting certain evidence to be admitted at trial.

                                1. Prior Fight Video

       {¶46} Prior to trial, J.P. filed a motion in limine to exclude a video entitled

“prior fight video, before murder.” The video contains a snippet of someone stating,

“On my daddy, I’ll be stabbing hos tonight,” while inciting two other girls to fight.

N.G.’s mother testified that the voice on the video is J.P. The video goes on to show the

fight between the two other girls. N.G.’s mother testified that a close friend of A.G. had

sent her the video via Facebook Messenger on the day N.G. died, approximately an

hour or two before the final fight between J.P. and N.G. According to N.G.’s mother’s

testimony, the message accompanying the video stated that the video had been going

around social media, and that J.P. and a couple of other girls had been “going around

picking and bullying on” other children.

       {¶47} At the pretrial hearing on the motion, the state represented that it did

not plan to use the video in its case-in-chief, and as a result, the court ruled that J.P.’s

motion was moot. However, during the state’s cross-examination of N.G.’s mother, the

state began to ask questions to lay the foundation for the introduction of the video.

Defense counsel objected on multiple grounds. Defense counsel argued that the video

was inadmissible because it was not relevant, having been made on a different day




                                            16
                  OHIO FIRST DISTRICT COURT OF APPEALS



than the fight that ended N.G.’s life; it was unfairly prejudicial character evidence

under Evid.R. 404(B); the video was not properly authenticated by someone with

knowledge of the circumstances of its creation; and it was a discovery violation

because the state did not provide information about how N.G.’s mother came into

possession of the video.

       {¶48} The state argued that defense had opened the door to the video by

putting into question the role that the parents played in encouraging J.P. and N.G. to

fight. On direct examination, J.P. introduced text messages between J.P.’s mother and

N.G.’s mother. When the state objected to the introduction of the text messages,

defense counsel described the purpose: “defense’s argument towards self defense also

involves parental influence on their children, which would go to their state of mind

and to their conversations before and after this happened as well.” The court asked

counsel to clarify, “whose state of mind?” Defense counsel answered, “Both Ms. [G.]

and Ms. [P.] and in regards to their influence on their children as well.”

       {¶49} The state argued that the video was relevant to rebutting the defense

argument of self-defense. According to the state’s view, the video is evidence that J.P.

wanted to “stab” someone that evening, independent of her mother’s encouragement

to fight N.G.

       {¶50} The court ruled that it would receive the video in the context it was

presented, as video that was sent to N.G.’s mother prior to N.G.’s death, showing J.P.

encouraging a fight. The court granted the defense motion to exclude the portion of

the video title “before murder.” The court further ruled that the defense would be free

to argue the timing of when the video was created, but that it would affect the weight

given to the video, not its admissibility.




                                             17
                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶51} J.P. first argues that the video was improperly admitted in violation of

Evid.R. 404(B).

       {¶52} “Evid.R. 404(B)(1) prohibits evidence of a defendant’s other acts when

its only purpose is to show the defendant’s propensity or character to commit crimes.”

State v. Glover, 

, 

, ¶ 41 (1st Dist.). However, under

Evid.R. 404(B)(2), other-acts evidence may be admitted for other purposes, “such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” 

 quoting Evid.R. 404(B)(2). We review the

admissibility of other-acts evidence de novo. 

 citing State v. Hartman, 

, 

, 

, ¶ 22. However, “we review the trial court’s

weighing of the probative value of admissible evidence against the danger of unfair

prejudice to the defendant for an abuse of discretion.” 

 citing Hartman at ¶ 30.

       {¶53} The state argues that the Evid.R. 404(B) analysis does not apply to acts

that are a part of the “res gestae” of the crime charged. See State v. David, 1st Dist.

Hamilton No. C-210227, 

 (explaining the “res gestae”

doctrine as allowing evidence of other acts that are “inextricably intertwined and, thus,

necessary to give the complete picture of what occurred”). However, this theory is

limited to those events that are “contemporaneous” with the charged conduct and

necessary to add “meaning and context” to other, relevant testimony. Id. at ¶ 19. The

res gestae doctrine is inapplicable in this context because the video is not

contemporaneous to the charged conduct. Even though the parties disagree whether

the video was from April 19 or some earlier date, the fight depicted in the video is

clearly some separate event prior to the stabbing. N.G.’s mother testified that she

received the video an hour or two before N.G. was stabbed. Consequently, the video




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                  OHIO FIRST DISTRICT COURT OF APPEALS



cannot be contemporaneous with the charged conduct in this case.

       {¶54} In analyzing admissibility under Evid.R. 404(B), “the first step is to

determine whether the evidence is relevant to the particular purpose for which it is

offered and whether it is relevant to an issue in dispute.” Glover, 

, 

, at ¶ 42, citing Hartman, 

, 

, 

, at ¶ 26-27. In this case, the relevance is conditional: if the video depicts events

from earlier on the day J.P. stabbed N.G., it would be relevant to showing that J.P.

intended to fight N.G., as the state alleged. If the events took place on a different day,

as J.P. claims, the relevance is largely attenuated because J.P.’s prediction that she

would stab someone that night would pertain to some other situation.

       {¶55} The state failed to establish that the video was made on the day of N.G.’s

death. N.G.’s mother testified that she received the video around 7:00 or 8:00 p.m. on

the day of the stabbing. The fight in which J.P. stabbed N.G. took place shortly after

9:00 p.m. The video shows two girls fighting outdoors while J.P. encourages the fight.

The outdoor scene is dark, which indicates that the video was made during the

nighttime. For the video to have been made on the day of N.G.’s death, it would have

had to have been filmed earlier in the day before the stabbing. There was no mention

in any testimony about a fight prior to the one that ended N.G.’s life, which would be

an extraordinary omission. Because the state failed to establish that the video was

created on the same day as the stabbing, the trial court erred in admitting the video.

       {¶56} However, in “a bench trial, ‘we presume that the court considered only

“relevant, material and competent evidence” unless the record affirmatively discloses

otherwise.’ ” Glover, 

, 

, at ¶ 44, quoting State v.

Pennington, 1st Dist. Hamilton Nos. C-170199 and C-170200, 

,




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                 OHIO FIRST DISTRICT COURT OF APPEALS



quoting State v. Post, 

, 

 (1987). In reaching its

conclusion, the juvenile court made no mention of the prior fight video or J.P.’s

statements that she would stab someone. And there is ample evidence to support the

court’s determination that the state had overcome J.P.’s argument of self-defense

without reference to the video. Under these circumstances, the error was harmless.

                          2. Refreshing Recollection

       {¶57} J.P. argues that the juvenile court erred when it permitted the state to

refresh C.W.’s recollection by an improper procedure. During the state’s direct

examination of C.W., the following colloquy took place:

       Q. Did [J.P.] say anything to you while you guys were in the car?

       A. No.

       Q. Okay. Did you hear anything from [J.P.] about a fight?

       A. No.

       Q. Do you remember giving a statement to police?

       A. Yes.

       Q. Okay. Now when you gave the statement to police, were you being

       honest?

       A. Yes.

       {¶58} At this point, defense counsel objected to the state’s attempt to refresh

the witness’s recollection. After discussion of the objection, the court ruled that the

state could continue its attempt to refresh C.W.’s recollection as long as the proper

process was followed:

       She has to remember giving a statement. And I need you to ask her if

       given this – looking at her statement would help her remember or if she




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                OHIO FIRST DISTRICT COURT OF APPEALS



      – or it would not. Because those are questions that she had to answer

      before you can show her her own document, otherwise I’m going to

      grant her the objection.

      {¶59} The state continued with its examination:

      Q. Ms. [W.], do you remember giving a statement to the police?

      A. Yes.

      Q. Okay. If I showed you that statement, would that refresh your

      recollection on the events that happened on that night?

      A. Yes.

      {¶60} The prosecuting attorney then showed the witness her statement. The

examination continued:

      Q. Okay. Now having read this statement, does that refresh your

      recollection on anything that [J.P.] may have stated?

      A. Yes.

      Q. Okay. Could you tell us about that?

      A. She told –

      Q. Who is she?

      A. [J.P.] was on the phone with someone, and she was telling whoever

      she was on the phone with that she was going to beat [N.G.]’s “a,” her

      ass.

      Q. Okay. And where is she – where is [J.P.] when she’s making these

      statements?

      A. She was walking up the street.

      {¶61} J.P. objected to the state refreshing C.W.’s recollection because C.W.



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                   OHIO FIRST DISTRICT COURT OF APPEALS



never stated that there was something she couldn’t remember.

       {¶62} Evid.R. 612 governs the use of writings to refresh a witness’s memory.

However, before the trial court permits the witness to use a writing to refresh her

recollection, the court must be satisfied that the witness lacks a present recollection of

the material. Dayton v. Combs, 

, 

 (2d

Dist.1993). “The propriety of the form of the questions employed to establish this lack

of present recollection is largely within the discretion of the trial court.” State v.

Henning, 6th Dist. Wood No. WD-22-046, 

, citing 

. The witness’s lack of present recollection may be express, such as where a witness

states that she cannot recall the material, “or it may be apparent from the course of

testimony, such as where trial counsel is surprised by the substance of a witness’s

testimony.” Weissenberger & Stephani, Weissenberger’s Ohio Evidence Treatise,

Section 612.3 (2023).

       {¶63} Here, it is apparent that the prosecuting attorney was surprised that the

witness testified that she did not hear anything from J.P. about a fight when she had

previously told the police otherwise. Counsel then inquired whether the witness’s

recollection would be refreshed by reference to her statement to police. The witness

then proceeded to testify based on her refreshed recollection, without reading the

police statement into evidence.

       {¶64} “Although the prosecution could have laid a better foundation for the

need of refreshing [the witness’s] recollection, it is the trial court that must be satisfied

that the witness lacks present recollection.” State v. Schrader, 5th Dist. Coshocton No.

88-CA-19, 

, 8-9 (Feb. 17, 1989). Because it was apparent

that the prosecutor was surprised by the substance of the witness’s testimony, the




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                 OHIO FIRST DISTRICT COURT OF APPEALS



juvenile court did not abuse its discretion by permitting the state to refresh the

witness’s recollection in this manner.

       {¶65} J.P.’s third assignment of error is overruled.

                                  III. Conclusion

       {¶66} We affirm the judgments of the juvenile court.

                                                                  Judgments affirmed.

BERGERON and WINKLER, JJ., concur.

Please note:

       The court has recorded its entry on the date of the release of this opinion.




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